Lacanlale Teresita Cruz v. Torture Claims Appeal Board and Another

HCAL 6/2019

[2021] HKCFI 2587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 6 of 2019

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 70-year-old national of the Philippines who last arrived in Hong Kong on 3 May 2005 with permission to work as a foreign domestic helper until the expiration of her employment contract on 20 January 2007 when she did not depart and overstayed in Hong Kong, and was arrested by police on 15 March 2013 for which she was subsequently convicted and sentenced to prison for 6 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by the local drug syndicate for having reported their illegal activities to the police in her home district. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Angeles City, Pampanga Province, the Philippines. After leaving school she married her husband and raised a family of 5 children who are now all adults.

3.After later separating with her husband, the Applicant in 1990 came to Hong Kong to work as a foreign domestic helper. In 2003 when she returned to the Philippines for holiday and during her visit of her father in her home district, she noticed illegal drugs activities in the neighbourhood controlled by the local drug syndicate controlled the leader named Roy against whom the Applicant later made a report to the police before leaving the Philippines to return to Hong Kong to carry on with her employment.

4.Shortly thereafter she was informed by her siblings in the Philippines that Roy had been arrested by the police and that large amounts of drugs in his home had been seized, that several weeks later Roy was found murdered in San Fernando by other drug dealers, and that his wife Yolanda who was also part of the local drug syndicate had sworn revenge against the Applicant for making the police report against her husband that she would be killed upon her return to the Philippines.

5.As a result of Yolanda’s threats, the Applicant became fearful for her life, and after her last employment contract expired  in January 2007, she was afraid to return to the Philippines and so she overstayed in Hong Kong, and upon her subsequent arrest by the police in 2013, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 19 January 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the local drug syndicate upon her return to the Philippines as low due to the absence of any past ill-treatment from them, that there is no reliable evidence of any threats being made directly against her by Yolanda or the local drug syndicate, that there is no reason to believe that they would still have any adverse interest in her after all these years when even on her own case that she had nothing to do with Roy’s murder and that no one in her family had ever been threatened by Yolanda or the local drug syndicate since her departure, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 107 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for her to be located.

8.By a Notice of Further Decision dated 26 May 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 12 February 2015, and for which she attended an oral hearing on 8 October 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 6 December 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found significant gaps and inconsistencies in the Applicant’s evidence between those given earlier to the Director and to the Board in her appeal hearing that it did not accept that she had ever made any police report against Roy or that his wife Yolanda or the drug syndicate had ever made any threats against the Applicant and which no one in her family had ever received any since she left the Philippines that it rejected the Applicant’s claims both individually and cumulatively in their entirety and concluded that upon her return to the Philippines that the Applicant will not face any risk of being harmed by anyone or of any of the proscribed forms that her claim for non-refoulement protection failed on all applicable grounds.     

11.On 2 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she just attached copies of the hearing bundle for her appeal before the Board but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 77 – 95 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

14.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

15.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 2^nd day of September 2021

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1